Willett v. State

983 S.W.2d 409, 335 Ark. 427, 1998 Ark. LEXIS 671

Opinions

Ray Thornton, Justice.

This is the second time we have reviewed the imposition of death penalties for each of two counts of capital murder committed by the appellant, Alan Willett. The two convictions for killing his son, Eric, and appellant’s brother, Roger, were affirmed by this court in Willett v. State, 322 Ark. 613, 911 S.W.2d. 937 (1995)(Willett I), as were convictions for attempted murder of appellant’s surviving children, Jonathan and Ruby. In Willett I, appellant sought to challenge the sufficiency of the evidence to support the aggravating circumstance found by the jury, but that argument was not raised to the trial court; therefore we did not consider the merits of that argument on appeal. However, we found error in the completion of the forms relating to mitigating circumstances which made it impossible to discern whether the jury found any mitigating circumstances to consider during the penalty phase, and reversed and remanded for resentencing.

During the resentencing hearing in August of 1996, the jury was presented evidence that appellant committed the capital murders of Roger and Eric in an especially cruel or depraved manner as those terms are defined by Ark. Code Ann. § 5-4-604, the statute establishing aggravating circumstances. Evidence was also presented that a number of mitigating circumstances existed. The jury unanimously found that the statutory aggravating circumstance existed beyond a reasonable doubt; that the aggravating circumstance outweighed beyond a reasonable doubt all mitigating circumstances found to exist; and that the aggravating circumstance justified a sentence of death beyond a reasonable doubt for each of the capital murders. Appellant brings this appeal, and we affirm.

For his first point on appeal, the appellant contends that the evidence presented at the resentencing trial was insufficient to justify a sentence of death on each count of capital murder. Our test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Ricketts v. State, 292 Ark. 256, 257, 729 S.W.2d 400, 401 (1987). On appeal, we review the evidence in the light most favorable to the appellee and sustain the conviction if there is any substantial evidence to support it. Abdullah v. State, 301 Ark. 235, 237, 783 S.W.2d 58, 59 (1990). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Hodge v. State, 303 Ark 375, 377, 797 S.W.2d 432, 433 (1990); Jones v. State, 269 Ark. 119, 120, 598 S.W.2d 748, 749 (1980).

The pertinent parts of Ark. Code Ann. § 5-4-604 provide:

Aggravating circumstances shall be limited to the following:

(8) (A) The capital murder was committed in an especially cruel or depraved manner.

(B) For purposes of this subdivision (8), a capital murder is committed in an especially cruel manner when, as part of a course of conduct intended to inflict mental anguish, serious physical abuse, or torture upon the victim prior to the victim’s death, mental anguish, serious physical abuse, or torture is inflicted. “Mental anguish” is defined as the victim’s uncertainty as to his ultimate fate. “Serious physical abuse” is defined as physical abuse that creates a substantial risk of death . . . “Torture” is defined as the infliction of extreme physical pain for a prolonged period of time prior to the victim’s death.

(C) For purposes of this subdivision (8), a capital murder is committed in an especially depraved manner when the person . . . shows an indifference to the suffering of the victim and evidences a sense of pleasure in committing the murder. . . .

On review, we examine whether substantial evidence was presented to support the jury’s unanimous finding that the statutory aggravating circumstance existed, that it outweighed all mitigating circumstances, and that it justified a sentence of death, all beyond a reasonable doubt.

Evidence Supporting Aggravating Circumstances

The jury considered the testimony of appellant’s daughter, Ruby, law-enforcement officials, and medical experts, and reviewed exhibits, photographs, and appellant’s videotaped statement. Appellant’s statement indicated that he considered murdering his family in August by carbon monoxide poisoning. He drove his family to a nearby lake to carry out this plan, but did not complete the murders. One month later, he stated that he sat up all night planning to kill his family and then to commit suicide. Early in the morning of September 14, 1993, he chose an eight-pound window weight as his weapon and first attacked his daughter Ruby, because she, as the oldest, would be most likely to talk him out of his plan. He struck her on the head, but she awakened, and according to Ruby, when she screamed, he attempted to smother her. The noise roused Ruby’s thirteen-year-old brother, Eric, who entered the room while Ruby was seeking to flee with the youngest brother, Jonathan, in her arms. The appellant struck Jonathan on the head, and then turned his attention to Eric while Ruby and Jonathan escaped. Appellant stated that Eric practically ran into the weapon, and fell to the ground when he was struck on the head. Appellant then turned upon his own mentally handicapped brother, Roger, told him to turn around, and when he did so, struck him on the head. The blow, however, did not stun him, and appellant repeated the attack with as many as five blows until Roger fell to the floor. Appellant then returned to Eric and struck him again to make sure he was dead, before appellant locked himself in the bathroom and cut himself on the wrists and throat. The medical testimony was that Eric may have lived as long as thirty minutes after being struck, and Roger was still alive when the officers arrived at the scene soon after Eric’s death. Both Ruby and Jonathan survived, and appellant’s conviction and sentence for attempted murder of Rudy and Jonathan, affirmed in Willett I, is not at issue in this appeal.

We first consider whether there was substantial evidence to support the jury’s finding that the statutory aggravating circumstance was proven beyond a reasonable doubt in each of the charges. As we look at the evidence that Eric’s murder was committed in an especially cruel manner because it was part of a course of conduct intended to inflict mental anguish upon Eric, we find evidence that Eric was confronted a month earlier with a plan to kill the family by carbon monoxide poisoning. Although that plan was not carried out, the awareness that such a plan had been considered illuminated the scene on the morning of the murders when Eric, hearing his sister’s screams, ran into the room to witness his father’s attack upon his sister Ruby and his brother Jonathan.

Appellant’s defense that he didn’t intend to inflict mental anguish upon Eric, he only intended to kill him, is demonstrative of an indifference to the suffering of the victim. Intent may be inferred from the circumstances of the crime. See Weaver v State, 324 Ark. 290, 294, 920 S.W.2d 491, 493 (1996). In this case, there was substantial evidence from which the jury could infer intent to inflict mental anguish, as well as to murder Eric, and in weighing the evidence, the jury is not required to accept appellant’s explanation of his own motives. The jury is allowed to consider all evidence, including that which showed that Eric watched his father’s attack upon his brother and sister. Prom this evidence a jury could find beyond a reasonable doubt that Eric must have suffered indescribable mental anguish and that he suffered uncertainty as to his ultimate fate as his father turned his attack upon him. See Davasher v. State, 308 Ark. 154, 170, 823 S.W.2d 863, 872, (1992), cert. denied, 112 S.Ct. 2948, 119 L. Ed.2d 571, 572 (1992). On review, the jury’s judgment will be upheld if, taking the evidence in the light most favorable to the State, a rational trier of fact could find the aggravating circumstance to have existed beyond a reasonable doubt. Kemp v. State, 324 Ark. 178, 200, 919 S.W.2d 943, 953-954, cert. denied, 117 S. Ct 436, 136 L.Ed.2d 334 (1996).

While appellant’s brother Roger might not have understood the significance of the plan to subject the family to carbon monoxide poisoning, there was abundant and substantial evidence that he witnessed the mayhem of the murderous scene of September 14, 1993, because the appellant told him to turn around, and when he did so, hit him in the back of the head with the window weight. Death was not merciful to either Eric or Roger. The first blow to the head did not stun Roger, and repeated blows were required to put him on the floor, where he remained alive until officers arrived. This substantial evidence would support the jury’s finding that Roger’s death resulted from an especially cruel or depraved manner because the means of inflicting death was serious physical abuse that first created a substantial risk of death, which, when continued and intensified, did finally result in his death.

We conclude that there was substantial evidence before the jury to support the finding that the aggravating circumstance existed beyond a reasonable doubt in each of the counts of capital murder.

Evidence of Mitigating Circumstances

The jury found that nine mitigating circumstances existed in this case. These factors were: (1) the capital murders were committed while Alan Willett was acting under unusual pressures; (2) before the 14th of September, 1993, Alan Willett had no history of criminal conduct; (3) before the 14th of September, 1993, Alan Willett helped coach Little League baseball and, in particular, helped a brain-damaged child; (4) after the 14th of September, 1993, Alan Willett has had no significant disciplinary problems with the prison system; (5) the crime committed on the 14th day of September, 1993, was out of character for Alan Willett; (6) Alan Willett cooperated with law enforcement in that he voluntarily gave a statement as to what happened on the 14th day of September 1993; (7) Alan Willett has exhibited remorse for having committed the offense; (8) Alan Willett can be a productive prisoner without the possibility of parole; and (9) Alan Willett directly suffered from the offense and will continue to suffer.

While only aggravating circumstances set forth in the statute may be considered by the jury , those aggravating circumstances must be established beyond a reasonable doubt. No similar limitation is placed upon mitigating circumstances. Ark. Code Ann. §§ 5-4-604 — 5-4-605 (Repl. 1997). A defendant is allowed to introduce evidence of mitigating circumstances, not limited to those set out in the statute, in order to persuade the jury that the aggravating circumstances which have been proven are mitigated so that they do not justify, beyond a reasonable doubt, the imposition of the death penalty. Even the slightest evidence of a mitigating circumstance may be submitted to the jury, and the jury may find that the mitigating circumstance exists based upon the preponderance of the evidence. While even the slightest evidence of a statutory aggravating circumstance may be presented to the jury during the sentencing phase, the jury must be convinced beyond a reasonable doubt that the aggravating circumstance exists. Ark. Code Ann. § 5-4-603(a)(l) (Repl. 1997).

Balancing Aggravating and Mitigating Circumstances

Following the determination of the existence of aggravating and mitigating circumstances, the jury is called upon to decide whether the aggravating circumstances outweigh beyond a reasonable doubt any mitigating circumstances that any of the jurors have found to exist. We note that when the jury finds that mitigating circumstances exist, if one juror determines that the aggravating circumstances do not exceed the mitigating circumstances beyond a reasonable doubt, the death sentence cannot be imposed. Flere, the jury unanimously found one aggravating circumstance existed and that it outweighed the mitigating factors beyond a reasonable doubt. The balancing of mitigating and aggravating circumstances is the duty of the jury. Ark. Code Ann. § 5-4-603 (Repl. 1997).

Imposition of Sentence

If the jury has unanimously agreed that one or more aggravating circumstances exist beyond a reasonable doubt, and that the aggravating circumstances outweigh beyond a reasonable doubt the mitigating circumstances, the jury must then determine whether the aggravating circumstances justify beyond a reasonable doubt the sentence of death. Only if the jury unanimously agrees can the death penalty be imposed.

We have reviewed the evidence presented during this resentencing trial, and conclude that substantial evidence was presented to the jury to support its findings that: (1) an aggravating circumstance existed; (2) that it outweighed the mitigating circumstances which the jury found to exist; and (3) that the aggravating circumstance that the capital murders were committed in an especially cruel and depraved manner justifies the imposition of a death sentence, all beyond a reasonable doubt. We affirm this point on appeal.

Constitutionality of Sentence

For his second point on appeal, appellant urges that the sentences of death are in violation of the Eighth and Fourteenth amendments of the United States Constitution as there is no meaningful appellate review of the jury’s finding of aggravating circumstances.

Appellant contends that by allowing the jury’s consideration of those aggravating and mitigating circumstances for which there is some evidence, however slight, that we have unconstitutionally modified our requirement for substantial evidence to establish an aggravating circumstance beyond a reasonable doubt. This argument stems from our decision in Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980). In Miller, we considered the problems inherent in the widespread practice by trial courts of submitting to the jury during the sentencing phase all mitigating and statutory aggravating factors whether or not there was any evidence to support them, and expressed our view that the better practice would be to only submit for the jury’s consideration those aggravating and mitigating factors for which there is any evidence, however slight. Id. We noted that each of the jury’s findings as to the existence of aggravating and mitigating circumstances was not a separate little verdict and also made the observation, upon which we did not rely, that “we do not require the same degree of proof to sustain a jury finding that an aggravating or mitigating circumstance exists as we would require to sustain a conviction if that circumstance was a separate crime.” Miller, 269 Ark. at 355, 605 S.W.2d at 439. That statement is not correct with respect to the degree of proof required by a jury to support an aggravating circumstance which must be found to exist beyond a reasonable doubt to justify a sentence of death.

In Miller, we reviewed the jury’s findings of aggravating circumstances justifying the imposition of the death sentence and applied the correct standard of review. We found that “there was sufficient evidence for the jury to find beyond a reasonable doubt that appellant killed the deceased to eliminate a witness and thus hopefully avoid arrest. ...” Id. The United States Court of Appeals for the Eighth Circuit pointed out that the language in Miller was flawed, but concluded that we had followed a correct standard of review. Miller v. Lockhart, 65 F.3d 676, 686-87 (8th Cir. 1995). In our later cases we have restated the standard that we will “review the sufficiency of the State’s evidence in the light most favorable to the State to determine whether any rational trier of fact could have found the existence of the aggravating circumstance beyond a reasonable doubt.” Kemp v. State, 324 Ark. at 199, 919 S.W.2d at 953. We do not change the rule established in Miller which allows the jury to consider those mitigating and statutory aggravating circumstance for which evidence, however slight, exists. However, we will continue to review all findings relating to aggravating circumstances which support the imposition of a death penalty to determine whether there existed substantial evidence for the jury to find beyond a reasonable doubt that one or more aggravating circumstances existed, that the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt, and that the aggravating circumstances justified a sentence of death beyond a reasonable doubt.

We have adhered to that standard of review in our consideration of the first point on appeal in this case, and hold that the death penalty in this case was constitutionally imposed.

Rule 4-3(h)

As required by Ark. Code. Ann. § 16-91-113(a) and Rule 4-3(h) of the Rules of the Arkansas Supreme Court, we have reviewed the entire record for other reversible errors and, finding none affirm the verdict and sentence of the jury.

Affirmed.

Imber, J., concurring in part. Newbern and Imber, JJ., dissenting.